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CEDB Released a Public Consultation Paper on Updating Hong Kong’s Copyright Regime on 24 November

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The Commerce and Economic Development Bureau of the Government of Hong Kong just released on 24 November 2021 a public consultation paper on updating Hong Kong’s copyright regime. 

This is brilliant news to copyright owners and fingers crossed with the passage of the new legislation! If you may wonder the meaning behind, the current Copyright Ordinance enacted in 1997 is considered badly obsolete and can barely cope with the rapid advancements and innovations in technology. Despite the Government’s deliberation to update the legislation initiated since 2006 with public consultations conducted,  two serious attempts to amend the Ordinance (The Copyright (Amendment) Bill 2011 and The Copyright (Amendment) Bill 2014) did not succeed due to filibustering by some members asserting the view that freedom of creativity or expression could possibly be compromised under the proposed legislative provisions.

The consultation paper described the legislative proposals in the 2014 Bill to be the result of years of deliberations of the Government, Legislative Council, copyright owners, online service providers and copyright users, representing the consensus and balance of interests of different stakeholders to enhance protection for copyright in the digital environment and combat large scale online piracy – which should be materialized without further delay.  

Key legislative proposals based on the 2014 Bill

A. Communication right – introduction of technology-neutral exclusive communication right for copyright owners to communicate their works to the public through any mode of electronic transmission in line with the international practice

B. Criminal liability – criminal sanctions introduced against infringers making unauthorised communication of copyright works to the public for profit or reward and with prejudice caused to the copyright owners

C. New copyright exceptions – for the education sector, libraries, museums, archives, temporary reproduction of copyright works by OSPs, and media shifting; and new fair dealing exceptions for the purposes of parody, satire, caricature and pastiche, commenting on current events, and use of quotation to facilitate expression of opinions or discussions in the online and traditional environment

D. Safe harbour provisions – limiting OSP’s liability for copyright infringements on their service platforms caused by subscribers as an incentive for OSPs to cooperate with copyright owners to combat online piracy

E. Additional damages in civil cases – empowering the court to award additional damages according to the circumstances with additional factors to assess including the unreasonable conduct of an infringer and likelihood of widespread circulation of infringing copies

Issues inviting public views

1. Should Hong Kong continue to maintain the current exhaustive approach by setting out all copyright exceptions based on specific purposes or circumstances?

2. Should Hong Kong introduce provisions to restrict the use of contracts to exclude or limit the application of statutory copyright exceptions? (currently is non-interference approach to contractual arrangements between owners and users)

3. Should Hong Kong introduce specific provisions to govern illicit streaming devices used for accessing unauthorized contents on the Internet, including set-top boxes and Apps? (Government’s current position is not to)

4. Should Hong Kong introduce a copyright-specific judicial site blocking mechanism? (Government’s current position is not to)

Issues to be considered for future legislative amendments
  • Extension of copyright term of protection
  • Introduction of specific copyright exceptions for text and data mining
  • AI and copyright

The consultation period is 3 months from 24 November 2021. We are more than happy to convey your thoughts to the Bureau or share our thoughts on issues you may have on copyright protection or circumstances that may put you at the risk of infringing someone else’s copyright.

How to Settle Civil Disputes: Importance of Tomlin Order

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Something must have gone wrong before parties commence civil litigation, whether the problem arises from breach of contract, unpaid invoices, or differing interpretations of terms of the contract. As civil litigation is costly, time-consuming, unpredictable, and at times excruciating for the parties’ peace of mind, it is not uncommon for parties to compromise and settle the civil dispute midway in the litigation proceedings. 

After years of advising and settling civil disputes, this series hope to shed light on the dos and don’ts for parties when they enter into settlement negotiations, and when they eventually sign and execute the settlement agreement. 

An important piece of consideration is to consider settling the civil action in Hong Kong by way of Tomlin Order. 

The nature of Tomlin Order 

In Hong Kong, Tomlin Orders are governed by the Rules of the High Court (Cap. 4A) and the Rules of the District Court (Cap. 336H). 

Provided under O.42 r.5A(2)(b)(iii) of the Rules of the High Court (Cap. 4A) and O.42 r.5A(2)(b)(iii) of the Rules of the District Court (Cap. 336H), Tomlin Order is a form of consent order which allows the parties to stay the proceedings upon the mutually agreed settlement terms which are scheduled to the Order but the terms of which do not otherwise form of the Order itself. 

Accordingly, Tomlin Order enables the parties to stay the proceedings, preserving the option to return to Court to enforce the settlement terms if one party fails to comply. This avoids the need for new legal action, making it an attractive option for settling a civil dispute. 

Further, the schedule, being a separate contractual agreement, can include terms that go beyond the ordinary terms typically ordered by the Court, and even go beyond the scope of the original dispute in the proceedings. 

In the Hong Kong case Shum Ho Seung v. Shum Foo Hang (As the Administrator of the Estate of Shum Kwok Hang, Deceased (18/12/2017, HCMP 3134/2016) [2018] 1 HKLRD 434, the Court clarified that it lacks general power to vary the terms in the schedule unless specific provisions for variation are included in the Order itself, or contractual law justifies it. In practice, the standard wording of a Tomlin Order in Hong Kong may include phrases like “all further proceedings be stayed except for the purpose of carrying into effect the terms of settlement,” with liberty to apply for enforcement. 

Here are the key benefits of settling a case via a Tomlin Order in Hong Kong: 

1. Enforceability without separate legal action 

If one party breaches the settlement terms in the schedule, the other can apply to the court to enforce the terms scheduled to the Tomlin Order directly, without starting a new legal action. 
 
For example, if a Defendant fails to pay an agreed sum as provided under the schedule to the Tomlin Order, the Plaintiff can seek enforcement by applying to a Judge/Master as appropriate. 
 
This is a way a more efficient and costs-saving route than settling the civil dispute by way of a separate settlement agreement, whereby generally, if a party breaches the terms of the settlement agreement, the other party will have to bring a fresh claim.

2. Flexibility in Settlement Terms 

The schedule can include terms which go beyond what the Court would typically impose in a judgment, e.g. ceasing certain actions not directly related to the original proceedings. In contrast, the terms which parties could enter by way of Consent Judgment (without Court’s leave) would be more limited under the straight statutory rules.
 
3. Preservation of Finality with Flexibility 

The stay of proceedings means the case is “paused”, but not dismissed. If the terms are fulfilled, the dispute ends without a full trial. On the other hand, if the settlement terms are breached, the innocent party can either enforce the scheduled terms or, in some cases, lift the stay to resume litigation (depending on how the Order is drafted). This balances closure with a safety net as opposed to a full withdrawal/dismissal, which may leave a party vulnerable if the other reneges. 

Conclusion 

The Tomlin Order must be carefully drafted to ensure enforceability and to prevent any pitfall compromising a party’s rights and interest. In summary, a Tomlin Order in civil litigation offers enforceability without separate legal action, flexibility, and preservation of finality with flexibility, making it ideal for parties seeking a practical binding settlement. For specific advice, as each case depends on its own facts, please consult a solicitor. 

Should you have any enquiries regarding civil litigation and commercial agreements, please contact our firm. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

How to Settle Civil Dispute: Importance of Payment by Instalment Clause

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Something must have gone wrong before parties commence civil litigation, whether the problem arises from breach of contract, unpaid invoices, or differing interpretations of terms of the contract. As civil litigation is costly, time-consuming, unpredictable, and at times excruciating for the parties’ peace of mind, it is not uncommon for parties to compromise and settle the civil dispute midway in the litigation proceedings.

After years of advising and settling civil disputes, this series hope to shed light on the dos and don’ts for parties when they enter into settlement negotiations, and when they eventually sign and execute the settlement agreement.

An important consideration is to consider having payment of settlement sum by instalments. In our experiences, this option has proven to be a game-changer, enabling parties to reach amicable resolutions more effectively. The practical benefits of having payment by instalment clauses in your settlement agreement are listed below:-

1. Alleviating Financial Flexibility for the Paying Party

When a party is required to pay a large settlement amount upfront, it can strain its cash flow, potentially forcing them to reject the settlement entirely.

By having payment by installment clauses in the agreement, the paying party gains room to better manage its finances. This flexibility can make the difference between a stalled negotiation and a signed deal, as it allows the debtor to commit to a resolution without jeopardizing their operational stability.

For instance, a small business facing a HK$1,200,000 settlement sum might struggle to pay it all at once. Spreading that amount over 12 monthly installments of HK$100,000, however, transforms an overwhelming burden into a manageable expense. This practicality often encourages parties to agree rather than prolong the dispute through litigation.

2. Ensuring enforceability of the Settlement Agreement

In cases involving a one-off payment, the settlement agreement carries a heightened risk of being contested down the line, as the paying party may later claim they were misled, poorly advised, or coerced into accepting the terms under economic duress—arguments that could potentially unravel the deal in court. A lump-sum payment, often made under pressure to resolve a dispute quickly, can leave the payor feeling cornered, especially if their financial situation deteriorates shortly after, prompting them to challenge the agreement’s validity by asserting they had no real choice but to comply at the time.

In contrast, a payment-by-instalment clause significantly mitigates this risk by spreading the financial obligation across multiple, manageable payments over an extended period, creating a built-in mechanism that strengthens the agreement’s practicality.

As long as the paying party adheres to some of the instalment schedule (i.e. making certain payment instalments), it is arguable that it effectively elects to affirm to the terms. This repeated compliance undermines any later attempt to overturn the agreement, as it creates a hurdle for the payor to convincingly argue misrepresentation or economic duress when their actions over months or years have indicated voluntary commitment.

By reducing the immediacy of the financial burden and providing a track record of commitment, such clause discourages post hoc legal challenges, offering both parties greater certainty in the resolution process.

3. Building Trust between Parties

Incorporating instalment payments into a settlement agreement can help build trust between parties. The paying party’s commitment to making regular payments reflects reliability and good faith, while the receiving party can appreciate the structured approach to fulfilling the agreement. The continued fulfillment of payment instalments can serve as a positive spiral for both parties to develop trust and positive interactions moving forward.

4. Preserving Business Relationships

Many business disputes occur between parties with ongoing or potential future dealings—suppliers and clients, partners, or vendors. A lump-sum demand can sour these relationships irreparably, whereas an installment plan demonstrates mutual accommodation. By agreeing to terms that work for both sides, the parties signal a willingness to maintain civility and cooperation, which can pave the way for future collaboration once the dispute is resolved.

Conclusion

Incorporating payment by installment into settlement agreements is more than a financial workaround—it’s a strategic tool that bridges gaps, builds trust, and expedites resolutions. For the paying party, it offers a lifeline to meet obligations without crippling their operations. For the receiving party, it ensures compensation with manageable risk. This approach transforms disputes from adversarial standoffs into opportunities for mutually agreeable solution.

Should you have any enquiries regarding civil litigation and commercial agreements, please contact our firm.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Recent updates on IP practices in Hong Kong

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1. IPD new forms

The Intellectual Property Department (“IPD”) of Hong Kong has announced that a new set of Trade Marks Forms, Patents Forms and Designs Forms (“the new forms”) will be effective from 16 May 2025.

A key feature of all the new forms is the inclusion of a declaration requiring agents to confirm their local physical presence and residency or their engagement in business activities at the specified address in Hong Kong.

Additionally, the forms include a warning that providing false information or declarations constitutes an offence. The primary purpose of this requirement is to mitigate the risk of missed communications or deadlines if an agent lacks a physical presence in Hong Kong.

Therefore, IP owners should ensure they engage an agent with an actual physical presence in Hong Kong, rather than one that merely maintains a mailing address without conducting business activities.

Another notable feature of some of the new forms—specifically T8, T10, T11, P9, P10, P19, D5, and D11 – is the addition of data fields to capture the type and place of incorporation of IP owners, grantees, licensees/sub-licensees, mortgagees, and other relevant parties. This enhancement is designed to facilitate due diligence processes in relation to IP transactions.

IPD has provided the draft versions of the new forms for information purpose, see https://www.ipd.gov.hk/en/home/whats-new/index_id_628.html.

2. Absolute Grounds for Refusal of Trade Marks

IPD has revised the Chapter on “Absolute Grounds for Refusal of Trade Marks” with the aim to elaborating the Registry’s examination practice primarily focus on Sections 11(4)(a), 11(4)(b) and Section 11(5)(a) of Trade Marks Ordinance, summarize as follows:

Section 11(4)(a) –

marks contrary to accepted principles of morality, if the marks are: –

  • Offensive or vulgar
  • Threatening national security
  • Containing offensive or hateful content
  • Imitating official symbols
  • Containing references to tragedies or disturbing events

Section 11(4)(b) –

marks that are likely to deceive, if they: –

  • contain words “made/made in/imported from” or “exported from” a geographical place but in fact the goods are imported/exported from or made elsewhere; or
  • suggested official approval but without any actual endorsement.

Section 11(5)(a) –

use prohibited in Hong Kong by virtue of any law, if:

  • the use of the trade mark constitutes an offence under the PRC Law on Safeguarding National Security in the HKSAR and/or the Safeguarding National Security Ordinance.

Our firm could assist clients to assess the chance of refusal of the intended trade mark on the above grounds as well as other grounds before filing to avoid potential refusal of the marks.

3. Shortening the time of issuing hearing notice

Previously, IPD often took a year or more to schedule a hearing after the close of pleadings. However, in recent trends, IPD has significantly reduced the time required to issue a hearing notice, often scheduling hearings in less than a year. In some cases, hearing notices are issued within just one or two months.

This improvement is beneficial, as it allows parties involved in proceedings to anticipate a faster resolution of their cases, ensuring a more efficient legal process.

How We Can Help

As a Hong Kong law firm, we can serve as the client’s authorized agent in handling the registration of their IP rights, including the preparation and submission of the necessary IP forms to the IPD.  Additionally, we provide expert assistance in assessing the risk of trade mark refusal based on various legal grounds. By conducting this evaluation before filing, we help minimize the likelihood of rejection and ensure full compliance with applicable laws and regulations.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

超越迷信：在香港无遗嘱死亡的真实影响

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在亚洲许多地区，讨论死亡和准备遗嘱仍然被视为禁忌，有些人甚至认为写遗嘱会带来厄运或不幸。这种抗拒意味着许多人从未考虑过，当他们在没有遗嘱的情况下去世时，遗产将受到《无遗嘱遗产条例》（第73章）和《非争议性遗嘱认证规则》（第10A章）「无遗嘱法」的管控 ，可能无法与他们的个人意愿相符。

在处理已故者的遗产之前，必须向法庭申请遗产承办书。以下人士有权作为申请者（按照优先順序排列）：

1. 配偶

2. 子女

3. 父母

4. 兄弟姐妹

5. 祖父母

6. 叔叔和阿姨

获授管理遗产授权书的人将成为管理员，负责根据法律处理遗产。管理员必须确定并收集已故者的资产，清偿未付的债务和开支，然后根据法律的规定分配遗产。一般来说，在无遗嘱的情况下，法律只允许你的配偶继承一半，你的孩子继承另一半。

除了能够确保您的意愿得到遵循之外，立遗嘱还有两个主要原因：

(1) 如果有遗嘱，从法院获得遗产承办管理书的过程要快得多（快几个月甚至几年）。

(2) 避免在您过世后，您的家人或亲密伴侣之间发生遗产诉讼。 优秀的遗嘱/遗嘱承办律师将能够计划一套遗嘱及其他文件，以避免那些认为自己曾经得到您经济支持的人基于与您曾经的密切关系向法院申请分享您的遗产。 香港法律允许享受过您的财务支持的人向法院申请分享您的遗产。

如果您想了解更多关于这方面的保障，请联络我们的合伙人，赵君宜律师 （+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。

The Legalities of Surrogacy: Complex Conceptions

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(This article was published in the March 2025 Issue of the Hong Kong Lawyer)

Surrogacy is generally known as the act wherein an individual agrees to become pregnant and give birth on behalf of another person or persons who will become the child’s legal parent(s) after birth. It is controversial because of various reasons, including the potential exploitation of vulnerable surrogates, lack of clarity with respect to child rights and the fact that it may be contrary to societal and/or religious values in certain societies. Questions which often arise include whether a woman has a right to make autonomous decisions about her own body and whether surrogacy would lead to the further objectification of children and/or women’s bodies, countered by the principle that reproduction is a basic human right.

Altruistic surrogacy is defined as surrogacy without monetary compensation (other than the payment of medical expenses), most likely done out of the goodness of the surrogate’s heart. On the other hand commercial surrogacy is defined as a surrogacy arrangement that involves the payment of money for services rendered as a surrogate.

Possible Parental Rights

When a child is born via surrogacy, it is entirely conceivable that the child has up to five types of individuals with varying and sometimes conflicting claims to parental rights – the sperm donor, the egg donor, the surrogate, the intended parents (if they were not the sperm donor and/or egg donor) and where divorce occurs, the step parents. The legal issues which arise with each type of individual and their parental rights are complex and often fraught with uncertainty.

Emotional and Psychological Factors

The surrogacy journey can be emotionally taxing for all parties involved. Intended parents may experience a range of emotions, from excitement to anxiety about the process and perhaps even a change of heart in extreme circumstances. Surrogates also face significant physical and emotional hurdles, including potential health complications during or after pregnancy, as well as the risk of forming an emotional bond with the child they are carrying. Awareness, open communication, counseling and robust institutional support systems are essential for societies to accommodate surrogacy arrangements from pre pregnancy to post birth.

Financial Considerations

The financial implications of surrogacy can be considerable, often ranging from tens of thousands to well over a few hundred thousand US dollars. Costs can include medical procedures, legal fees, agency fees and compensation for the surrogate. Many intended parents find themselves traversing a landscape where insurance coverage is limited, and financial planning becomes essential.

The Ethics of Surrogacy

There are many divergent points of view that highlight the complexities of this reproductive arrangement. Central to the discussion are the power dynamics which may emerge between wealthy intended parents and economically disadvantaged surrogates, raising concerns about exploitation and informed consent in commercial surrogacy agreements. The roles of surrogacy agencies and other brokers may create potential conflicts of interest, prioritising profit over the well-being of surrogates and even children. More recently, the ethical implications of genetic enhancement and selection further complicate the landscape, as they challenge notions of fairness and equity in reproduction. Moreover, medical practitioners must uphold their professional responsibilities to ensure that all parties are fully informed and supported, emphasising the need for ethical guidelines that prioritise the health and rights of surrogates and children while respecting the intentions of intended parents.

Legal Environment and Considerations

The legalities surrounding surrogacy can be complex and vary significantly by jurisdiction. In some countries, surrogacy is fully supported by the law, while in others, it remains highly regulated or even prohibited. Understanding these legal frameworks (which are often reflective of different societal values), is crucial for legal practitioners, would-be surrogates, intending parents and relevant health care providers.

In many jurisdictions, complex legalities beyond the actual surrogacy may not have been legislated as yet, such as rights of the child vis-a-vis immigration and citizenship when born abroad, their access to genetic/biological information, right to maintain a relationship with their surrogate mother as well as rights to other disclosure requirements.

Well drafted surrogacy agreements may provide for unforeseen circumstances such as prenatal testing decisions and potential conflicts, medical emergencies or even the termination of a pregnancy, but in many jurisdictions, surrogacy agreements are not enforceable. The results may be unpredictable in many surrogacy arrangements.

Australia

All Australian states prohibit commercial surrogacy, citing concerns about the exploitation of surrogates as well as parental rights and best interest of the child. Altruistic surrogacy is allowed, with some states being more restrictive than others. Reimbursement for verifiable, out-of-pocket expenses may be made where the expenses are directly associated with the surrogacy procedure, pregnancy or birth.

Pursuant to the  Ethical guidelines on the use of assisted reproductive technology in clinical practice and research 2017 (updated 2023), expenses which are allowed include the following:

  • medical and counselling costs, before, during, and after the pregnancy or birth;
  • travel and accommodation costs within Australia;
  • loss of earnings from unpaid leave;
  • insurance;
  • child care costs when needed to allow for attendance at appointments and procedures related to the surrogacy arrangement; and
  • legal advice.

The legal recognition of intended parents depends on the state where the surrogacy arrangement takes place. In the state of New South Wales, the Surrogacy Act 2010 stipulates that at birth, the surrogate is recognised as the birth mother of the child and if she is married or has a partner, that person is recognised as the other parent. The intended parents must then apply to the Supreme Court for a Parentage Order before they can be recognised as the legal parents.

Surrogacy arrangements made in New South Wales are not legally enforceable.

Canada

The federal Assisted Human Reproduction Act (“AHRA”) governs surrogacy in Canada, where only altruistic surrogacy is permitted. Compensation for expenses is permitted but commercial surrogacy is strictly prohibited. The AHRA does not affect the legality of any surrogacy agreement that has been signed in Canada, which must follow the law of the province where the agreement was signed.

Legally reimbursable items include:

  • ravel expenditures;
  • expenditures for the care of dependants or pets;
  • expenditures for counselling services;
  • expenditures for legal services and disbursements;
  • expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;
  • expenditures for obtaining products/services that are provided or recommended in writing (and the cost of such recommendation) by an authorised person to assess, monitor and provide health and postpartum care to a pregnant woman;
  • expenditures for the services of a midwife/doula;
  • expenditures for groceries, excluding non-food items;
  • expenditures for maternity clothes;
  • expenditures for telecommunications;
  • expenditures for prenatal exercise classes;
  • expenditures related to the delivery;
  • expenditures for health, disability, travel, or life insurance coverage; and
  • expenditures for obtaining or confirming medical or other records.

The legal process through which intended parents obtain legal parental status varies by province. Pursuant to the Children’s Law Reform Act in the province of Ontario for example, intended parents establish parentage through a simple administrative process provided the surrogacy agreement was entered into prior to conception, each party received independent legal advice, there are no more than four intended parents and conception was achieved via assisted reproductive technology.

Hong Kong SAR

Pursuant to section 17 of the H (Cap. 561), Hong Kong prohibits commercial surrogacy arrangements. In altruistic arrangements, bona fide medical expenses arising from the pregnancy and the delivery of the child born via surrogacy are legally reimbursable.

To establish legal parentage, the intended parents may obtain a parental order under section 12 of the Parent and Child Ordinance (Cap. 429). Unfortunately only legally married heterosexual couples can apply. When considering the application, the court will retrospectively authorise and approve surrogacy expenses.

Where the intended parent or parents are not legally married heterosexual couples, the only option may be to seek judicial approval for the child to be privately adopted outside the Social Welfare Department. This limitation arises from Hong Kong’s current lack of recognition for same sex marriages.

Hong Kong’s regime is one where an altruistic arrangement with intended parents who are legally married to each other is the only legal pathway for surrogacy. Furthermore, surrogacy agreements are not enforceable in Hong Kong, making it a challenging jurisdiction for surrogacy arrangements.

United Kingdom

In the UK, surrogacy is regulated under the Surrogacy Arrangements Act 1985. Surrogates can be compensated for reasonable expenses, but surrogacy agreements cannot be enforced. Commercial surrogacy is prohibited.

There is no definition of what constitutes reasonable expenses – this has led to generous interpretations by the courts for allowable expenses, yet commercial surrogacy is strictly prohibited. The Law Reform Commission of England and Wales published a joint report with the Scottish Law Commission in 2023 that recommended clarifying categories of payments that intended parents will be permitted to make and conditions for intended parents to become legal parents upon the birth of a child born via surrogate.

At present, the surrogate is the child’s legal parent at birth in the UK. If the surrogate is married or has a partner, the spouse/partner will be the child’s other legal parent, unless they did not give their consent. Intended parents may apply for a parental order at the family court after the child’s birth to gain legal recognition as the parents but only if one of the intended parents is genetically related (i.e., the egg or sperm donor) to the child. If not, the only route to becoming legal parent(s) is adoption.

United States

In the U.S., surrogacy laws differ from state to state. States like California and Illinois have permissive regulations that support both altruistic and commercial surrogacy arrangements, often providing legal recognition of the intended parents as the child’s legal guardians. Conversely, Arizona’s Revised Statute § 25-218 prohibits surrogacy. In many other states, their legislatures have not yet legislated for or against surrogacy.

New York’s Family Court Act Chapter 686 Article 5-C allows for reimbursement and compensation for surrogates, enforceable surrogacy agreements and judgement of parentage prior to the child’s birth, which becomes effective upon the child’s birth.

This patchwork of laws often leads intended parents to “venue shop,” opting for states or regimes with more favorable legal conditions for surrogacy. But arranging for surrogacy in one venue and then taking the child to live in another venue may lead to a more complex route when the intended parent(s) seek to become legal parent(s) of the child.

Other Jurisdictions

Countries like India, Russia and Ukraine have become popular destinations for international commercial surrogacy due to their more permissive laws. However, intended parents must make themselves aware of the legal challenges they may face when they wish to return to their home country with a child born via surrogacy.

Conclusion

Both altruistic and commercial surrogacy offer a viable pathway for many individuals and couples hoping to create a family despite their financial, legal, physical and/or psychological obstacles. Navigating these complex landscapes requires careful consideration, maturity and professional planning. Understanding the specific laws and regulations governing surrogacy in various jurisdictions, alongside their associated costs and support systems, is essential for the intended parent(s).  

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

入住香港安老院：不可忽视的法律与合约考量

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2024年4月15日，消费者委员会发布了一份 重要報告，深入检视香港安老院的标准、费用及透明度。报告中揭示了多项问题，例如隐藏费用、不一致的护理标准以及含糊的合约条款。同时，报告也突显出一个更深層次的问题：含糊的合约条款及许多家庭选择安老院所涉及的法律和财务复杂性缺乏认知。

入住养老院，无论是政府补贴的还是私人的，都是一个重大决定，不仅涉及评估设施、人员配备和服务是否足够。合约的条款规范了从费用到护理服务以及作为住户的权利等一切事项。这一点在私人安老院尤为重要，因为家庭通常需要承担更多大的财务责任，所以必须更加谨慎地审视所签署的协议内容。

在本文中，我们将探讨在香港选择安老院时每个人都应该注意的主要法律和合同考量。

牌照与认证照

无论你考虑的是私人还是资助的安老院，第一步是确保该设施拥有合法牌照。在香港，所有安老院（RCHEs）均受《安老院条例》（第459章）规管，该条例为住宿、员工配置和护理服务设立了最低标准。

除了牌照外，还应考虑该安老院是否获得像香港认证服务（HKAS）等认可机构的认证。认证意味着该机构遵守更严格的标准，这可能会转化为更好的护理服务和更安全的环境。正如消费者委员会指出的，获得认证的安老院更有可能投资于持续改进。

费用：透明度至关重要

报告显示，私人安老院的费用差异巨大，从每月6,000港元到超过80,000港元不等。然而，这些数字往往不包括消耗品、医疗护理，甚至基本的空调费用等额外费用。因此，仔细检查合同并确保以下事项清楚明确是至关重要的：

  • 基本费用：清楚了解每月收费包含哪些项目
  • 额外收费：常见的额外费用包括医疗陪诊、特殊膳食需求或失禁用品如尿片。这些费用可能迅速累积，因此务必要求提供详细清单
  • 退款和押金政策：如果住户住院或选择提前离开安老院，未使用的费用是否会退还？许多合同对于退款有严格的规定，或者根本没有相关条款，因此这一点需要特别注意。
  • 费用调整：查看是否有允许调整费用的条款。虽然生活成本上涨是常见的，但合同应明确规定通知期限以及允许的涨幅百分比。

在私人安老院中，家庭需承担全部财务负担，因此费用透明度尤为重要。

护理服务：安老院能否满足不断变化的需求？

消费者委员会的一大关注点是安老院在应对住户健康状况变化时的灵活性有限。无论安老院提供的是基本护理、护理服务还是专门的失智护理，合同都应清楚列明可提供的服务以及如果护理需求随时间发生变化时的应对方式。

例如：

  • 该设施是否提供24小时全天候护理服务？
  • 如果住户出现行动问题或需要临终护理，会怎样处理？
  • 如果需要，安老院是否会协助安排转介至更高护理级别的设施？

私人安老院可能提供更具个性化的护理服务套餐，但这些通常需要支付相当高的费用。事先了解安老院是否能持续满足你亲人的需求，或者是否可能需要将其转介至其他设施，这是非常重要的。

终止政策

终止条款在不同的安老院之间差异很大，消费者委员会的调查结果显示，安老院在处理合同终止方面缺乏一致性。务必注意合同中有关以下方面的具体条款：

  • 自愿终止：如果你决定离开安老院，需要提前多长时间通知？退款政策是怎样的？
  • 安老院主动终止：在什么情况下安老院可以解除住户合同（例如，无法支付费用或健康问题无法处理）？
  • 驱逐程序：这些程序应与消费者保护法相符，以防止不公平或突然的驱逐。

私人安老院，可能会有更严格的条款偏有利于安老院，因此仔细审查这些条款至关重要。

争议解决：你的选择是什么？

许多合同中包含要求争议通过仲裁或调解而非法院诉讼解决的条款。虽然这些程序可能较为快速，比较昂贵，也可能会限制你采取法律行动的权利。确保合同中规定了清晰、公正和透明的解决程序，并了解像香港消费者委员会等资源，该机构可以调解争议并提供建议。

住戶權利：應注意的法律保護

根据《安老院（长者）条例》，住户有权享有基本权利，如隐私、尊严以及参与护理决策。私人安老院经常以提供“高端”服务为卖点，但这些基本权利不应该受到妥协。在审查合同时，确保它反映了对以下承诺的支持：

  • 医疗服务：现场医疗人员和紧急应对系统的可用性。
  • 安全与卫生：感染控制、清洁和定期健康检查的政策。

消费者委员会还鼓励家庭询问员工与住户的比例，因为较低的比例通常会带来更好的护理服务。

数据隐私与法律监护

消费者委员会强调，保护住户的个人和医疗信息至关重要，特别是在可能涉及外部服务的私人设施中。确保合同符合《个人资料（隐私）条例》（第486章），并包含有关资料共享或使用的明确指引。

如果住户有法律监护人或授权书，请确认安老院承认这些安排并尊重指定代表的决策权。

结论：保持知情，保障权益

消费者委员会的报告强烈提醒人们，在香港入住安老院是一个具有重大法律和财务影响的决定。

如果您想了解更多关于这方面的保障，请联络我们的合伙人，赵君宜律师，（+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。